HR strategies for same-sex secondments internationally.
With an increasingly global marketplace, companies are turning to international secondments and postings to place talent around the world. Planning a secondment or placement is a complex undertaking, and a host of issues must be considered, from immigration to compensation and tax planning.
Often overlooked in the planning process is the home and host country's treatment of same-sex marriage and protections based on sexual orientation and gender identification, and how such laws will impact an employee's placement. While many global corporations have adopted policies aimed at treating employees equally regardless of sexual orientation or gender identification, the countries in which they do business often differ in their treatment.
In any secondment or international posting, understanding the host or home country's treatment of same-sex marriage has never been more important.
This article is the first in a two-part series. Part 1 outlines several jurisdictions' treatment of same-sex marriage and protections based on sexual orientation and gender identification. Part 2 will provide an outline of best practices and recommendations for planning and managing international secondments and placements based on jurisdictions with varying treatment of same-sex marriage and sexual orientation and gender identification protections.
In the United States, the Supreme Court recently found section 3 of the Defense of Marriage Act (DOMA), which defined marriage as that between a man and a woman, unconstitutional, leaving to each state the ability to define marriage. As of the writing of this article, 30 U.S. states permit same-sex marriage by law or by court ruling, and 20 prohibit it. Nearly all states that ban same-sex marriage or limit the rights afforded to same-sex couples have pending state court challenges.
In the U.S., federal law and state law now operate differently. For the purposes of U.S. federal laws, such as tax and regulation of employee benefits, the law recognizes same-sex marriage based on the jurisdiction in which the marriage was performed, regardless of where the couple now resides (a so-called "place of celebration rule").
So, for example, U.S. federal tax law would recognize the same-sex marriage of a couple validly and legally married in a jurisdiction permitting same-sex marriage, such as Massachusetts or a foreign country that permits same-sex marriage, regardless of whether the couple now resides in a state that does not recognize same-sex marriage.
By contrast, the application of state laws, such as a state-level income tax or state-based insurance laws, depends on whether the state permits same-sex marriage or recognizes a same-sex marriage entered into in another state. As a result, a couple may be treated differently under federal and state law, depending on where the couple resides.
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In addition, U.S. federal laws generally do not extend favorable tax treatment or other protections to domestic partners who are not validly and legally married. Some states, however, such as California, do extend certain protections to domestic partners. This issue must be considered on a state-by-state basis.
For immigration purposes, the U.S. follows a "place of celebration rule," allowing same-sex spouses to apply for a U.S. visa on the same basis as if they were an opposite sex couple. Accordingly, a same-sex spouse, or stepchildren acquired through a same-sex spouse, of a visa applicant coming to the U.S., will be eligible for a derivative visa.
Application of U.S. employment laws are mixed. The U.S. has not yet passed comprehensive employment discrimination laws at the federal level to address same-sex marriage, sexual orientation, or gender identification. By executive order, federal contractors are now prohibited from discriminating against workers and applicants based on sexual orientation or gender identity. Similarly, executive orders prohibit the federal government from discriminating against employees and applicants on the basis of sexual orientation and gender identity. In addition, several states have passed laws prohibiting such discrimination. Local government laws may create additional protections or restrictions and must be reviewed as well.
The following is a brief overview of two common placement countries: France and the United Kingdom.
France recognizes same-sex marriages and provides similar rights and benefits to same-sex spouses living and working in France.
French law also protects employees based on their sexual orientation when they refuse a posting providing that no employee may be sanctioned, dismissed or be subject to discrimination for having refused, because of his or her sexual orientation, a transfer to a country criminalizing homosexuality. Any disciplinary measure, discriminatory measure, or any dismissal based on the ground of such a refusal, would be deemed null and void.
In addition, French law bans indirect discrimination based on sexual orientation. Also, under French law, the employer is fully liable for the safety of his employees, even when seconded internationally.
The UK also recognizes same-sex marriages and provides similar rights and benefits to same-sex spouses living and working in the UK.
Workers are protected against less favorable treatment because of sexual orientation. For example, in the UK, it would be unlawful direct discrimination for an employer to choose one worker over another to work overseas because of the worker's sexual orientation. The employer's decision in this scenario would be unlawful even if its motives were benign, for instance, if an employer feared compromising the safety of a gay or lesbian worker being sent to a country that criminalizes homosexuality.
Workers are also protected against indirect discrimination. For instance, this could arise if an employer requires that all staff work in jurisdictions where same-sex partnerships are not recognized. Employees with same-sex partners potentially are put at a disadvantage as they may feel obliged to hide their orientation, or may be unable to take their same-sex partner with them.
Planning is key
The UN reports as of this writing that over 76 countries criminalize same-sex relationships -- much less recognize or extend benefits to same-sex spouses. Companies considering sending employees to work abroad should evaluate which rules will apply and develop an international placement strategy that complements corporate philosophy.
Part 2 of this article series will provide an outline of best practices and recommendations for planning and managing international placements based on jurisdictions with varying treatment of same-sex marriage and sexual orientation and gender identification protections.
The article by partner Tiffany Downs and senior associate Scott Wagner of the Atlanta office at U.S. law firm FordHarrison, alongside Pia Sanchez of UK firm Lewis Silkin and Jean-Baptiste Chavialle of the French firm Capstan examines the HR implications of same-sex work postings. All three firms are members of the global employment law firm alliance Ius Laboris
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|Date:||Oct 17, 2014|
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